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October 5, 2000, Thursday, Late Edition -
Final
SECTION: Section A; Page 26; Column
3; National Desk
LENGTH: 946 words
HEADLINE: Justices Questions Congress's Limits on Legal
Aid Arguments
BYLINE: By LINDA GREENHOUSE
DATELINE: WASHINGTON, Oct. 4
BODY:
The Supreme Court has permitted Congress to
attach many strings to the use of federal money over the years. But pointed
questioning by the justices today indicated that in restricting the type of
legal arguments that lawyers in the federally financed legal services program
can make on behalf of welfare clients, Congress might have gone too far.
A 1996 appropriations measure for the Legal Services
Corporation barred any "effort to amend or otherwise challenge existing
law" in welfare cases; lawyers supported by the program could seek benefits on
behalf of their clients but even while using money from private sources could
not challenge the regulation or law under which the benefits had been denied.
The restriction has been carried forward each year since then. The Legal
Services Corporation has accepted the restriction as an alternative to
being driven out of business by a hostile Republican majority in Congress.
Joined by the Clinton administration, the corporation defended the policy before
the justices today in an appeal of a lower court ruling that found it to be an
unconstitutional restriction on criticism of government policy. The suit to lift
the limitation was brought in New York City by individual legal services
lawyers, their clients and a coalition of nonprofit organizations.
"Congress itself has the power to decide what policies and programs it
will promote," Alan Levine, a lawyer for the corporation, told the justices,
adding that the limitation "made perfect sense" for a Congress that wanted to
keep federally financed lawyers from challenging the substantial changes brought
about by the 1996 welfare law. And Edwin S. Kneedler, a deputy solicitor
general, told the court that the case concerned not speech but only "what type
of professional services is the government going to pay for." Lawyers who
represent a client are not engaging in "self-expression" in any event, he said.
But the court was deeply, even surprisingly skeptical. Challenging a
government policy in court was "the paradigm of free speech, a petition to the
government," Justice Anthony M. Kennedy told Mr. Kneedler.
The justices'
concern seemed animated by their own experience as lawyers, and they were
troubled by the notion of having to represent a client with certain arguments
foreclosed.
Under intense questioning by Justices Ruth Bader Ginsburg,
Sandra Day O'Connor and David H. Souter, Mr. Levine conceded that a legal
services lawyer could not make a type of argument that is the bread and butter
of administrative law: that a regulation should be interpreted in a certain way
because, interpreted another way, it might well be unconstitutional. Even the
suggestion that a regulation was invalid would fall under the prohibition, the
corporation's lawyer said.
The restriction means in effect that the law
is whatever the government says it is, Justice Souter said, adding, "It limits
more than I thought."
To Mr. Kneedler, the deputy solicitor general,
Justice Souter said, "You're getting just about to the molten core of the First
Amendment" when the government "disfavors speech" that disagrees with existing
government policy. "There's something very risky going on here."
Justice
Souter's comments and active participation today drew particular notice because,
as nearly everyone in the courtroom was aware, his view of the case,
Legal Services Corporation v. Velazquez, No. 99-603, could well
determine the outcome. In 1991, during his first term on the court, he joined
the 5-to-4 majority that upheld a ban on abortion counseling by family planning
clinics that received federal money. Nine years later, Justice Souter often
appears notably more skeptical of government policy, and there has been
considerable speculation that his vote would be different if he were deciding
that case today.
Burt Neuborne, the lawyer for the plaintiffs in the
case today, said that the abortion case, Rust v. Sullivan, was wrongly decided
but did not have to be overturned for his clients in the legal services case to
prevail. In the earlier case, he said, the government had in effect hired the
doctors who worked in the family planning clinics and given them the job of
"disseminating one point of view and not another" on abortion as a method of
family planning.
But in the context of legal services, he said, the
lawyer hired to give the government's message was not the legal services lawyer,
but rather the government's own lawyer who appeared in court to defend a
government policy in a lawsuit. The legal services lawyer "doesn't speak for the
state," Mr. Neuborne, legal director of the Brennan Center for Justice at New
York University Law School, told the justices.
"The government has hired
one lawyer for the government's message and commandeers the voice of the other
lawyer as well," he said. The restriction was "a core interference with what
attorneys ordinarily do for clients," he said, noting that it was very difficult
for a lawyer to know in advance what kinds of arguments would serve a client's
case. "Legal services clients don't appear on your doorstep color-coded by
argument," he said.
In his 1999 opinion striking down the restriction,
Judge Pierre N. Leval of the United States Court of Appeals for the Second
Circuit found it an example of "viewpoint discrimination" that "clearly seeks to
discourage challenges to the status quo." Granting that Congress was free to
finance some activities and not others, he said this case had a First Amendment
dimension that placed it in a different category than abortion counseling or
indecent art, the subjects of the Supreme Court's recent
precedents. http://www.nytimes.com
LOAD-DATE: October 5, 2000 
